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2015 DIGILAW 603 (TRI)

Gunai Bibi v. Uttam Kumar Sarkar

2015-07-29

DEEPAK GUPTA

body2015
JUDGMENT : This appeal for enhancement of compensation is directed against the award dated 02.01.2009 delivered by the learned of the Motor Accident Claims Tribunal, South Tripura, Udaipur in T.S(MAC) No. 23 of 2008 whereby the Tribunal awarded compensation in favour of the claimants. 2. Briefly stated, the facts of the case are that Late Sri Malu Miah, husband of Smt. Surjya Devi Jamatia (Begam), father of Smti. Mousumi Aktar and son of Gunai Bibi and Adam Ali was driving a Maruti Car having registration No. TR-01-F-0412 owned by him and this car was insured with the United India Insurance Co. Ltd. The Maruti car had a collision with a bus bearing registration No.TR-01-A-1311 owned by Sri Uttam Kumar Sarkar and insured with the National Insurance Company Ltd.. A number of persons died/received injuries in the accident. Malu Miah driver of the car also died as a result of the injuries sustained in the accident. The parents, widow and minor daughter of Malu Miah filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short, the Act) claiming compensation. The learned Tribunal held that Malu Miah was himself responsible for the accident to the extent of 50% and therefore, deducted 50% from the amount assessed as compensation. He held the appellant, National Insurance Company Ltd. only liable to pay 50% of the amount as assessed i.e. Rs.4,51,500/-. The insurance company has satisfied the award and the claimants have filed the present appeal. 3. The first ground raised by the claimants is that the learned Tribunal erred in holding that the deceased Malu Miah was negligent in driving. It is contended that there is no contributory negligence on his part. The second point raised is that the quantum of compensation is very much on the lower side. In this regard it is contended that the income of the deceased has not been properly assessed and his future prospects have not been taken into consideration while awarding the compensation. 4. After going through the records of this case I find that this is a shocking case where seven claim petitions were filed arising from the same accident and there are three different types of awards passed by the Motor Accident Claims Tribunal. 4. After going through the records of this case I find that this is a shocking case where seven claim petitions were filed arising from the same accident and there are three different types of awards passed by the Motor Accident Claims Tribunal. This has happened because counsel for the insurance companies did not care to inform the Tribunals that there are other cases out of the same accident and as far as possible an effort should be made that all cases arising out of one accident are heard by the same Tribunal. 5. As pointed out above there were two vehicles involved in the accident. One insured with the National Insurance Company Ltd. and another with the United India Insurance Company Ltd. Unfortunately, the United India Insurance Company was not made a party in some of the cases. One Sarojini Kalai filed two claim petitions. In one claim petition decided on 29.8.2008 by the learned Motor Accident Claims Tribunal, West Tripura, Agartala the National Insurance Company was burdened with the liability to pay the entire awarded amount and it has satisfied the award. In the second claim filed by her this Court enhanced the compensation on 12.01.2015 and again the entire liability was fixed on the National Insurance Company. The United India Insurance Company was not a party to these claim petitions. 6. Smt Jariham Kalai filed two other claim petitions. In these petitions the United India Insurance Company was also made a party and in both the claim petitions the learned Tribunal apportioned the liability 70% on the National Insurance Company and 30% on the United India Insurance Company. It appears that one award was satisfied by both the companies and in the second award, appeal was filed by the claimants and this Court enhanced the amount but again fixed the liability 70% and 30% between National Insurance Company and United India Insurance Company. 7. Smt Gunai Bibi also filed two claim petitions and according to the National Insurance Company, one case out of that is still pending in this Court. One Uma Kalai(Debbarma) also filed a claim petition and the learned Motor Accident Claims Tribunal fixed the liability at 50-50 and both the insurance companies appear to have satisfied the award. 8. 7. Smt Gunai Bibi also filed two claim petitions and according to the National Insurance Company, one case out of that is still pending in this Court. One Uma Kalai(Debbarma) also filed a claim petition and the learned Motor Accident Claims Tribunal fixed the liability at 50-50 and both the insurance companies appear to have satisfied the award. 8. Thus we have a situation that in some cases the entire liability has been fastened on the National Insurance Company Ltd. In some cases 70% has been fastened on the National Insurance Company Ltd. and 30% on the United India Insurance Company Ltd. and in some cases like the present case 50 : 50 has been apportioned. There is total lack of consistency in the award. However, I would like to make it clear that in the two cases where no award was made against the United India Insurance Company Ltd. neither the owner of the car nor the insurance company of the car were made parties to the petition and the National Insurance Company Ltd. did not even deem it fit to inform the Tribunal about the pendency of other cases where the United India Insurance Co. was a party. In the present case the learned Tribunal has on the basis of the police document and FIR come to the conclusion that the negligence is 50:50. I am not in agreement with this finding. 9. Sri Majumder is right that the liability should be fixed by taking into consideration the evidence recorded in a case. At the same time when there are various claim petition arising out of the same accident there should be consistency amongst the different awards and since in a number of the awards the apportionment has been made 70% against the National Insurance Co. Ltd. and 30% against the United Insurance Co. Ltd.. I following the earlier awards also hold that the National Insurance Company shall be liable to pay 70% of the amount. The United India Insurance Company insurer of the Maruti Car cannot be directed to pay any amount because it is not liable to pay any amount to the owner of the vehicle which was insured with it. 10. Next comes the question of quantification. The claimants claimed that the deceased was working as a contractor earning Rs.50,000/- per month. However, no income has been proved on record. 10. Next comes the question of quantification. The claimants claimed that the deceased was working as a contractor earning Rs.50,000/- per month. However, no income has been proved on record. The learned Tribunal assessed the income at Rs.7,000/- per month. What the learned Tribunal did not take into consideration is the fact that the deceased was admittedly the owner of a motor car. A person who earns only Rs.7,000/- per month cannot afford to own a motor car. The claimant was not paying income tax. Therefore, his income cannot be assesses at more than what was the maximum non-taxable income at the relevant time. The accident took place in the year 2007 and in my opinion keeping in view all factors it would be appropriate to assess the income as Rs.12,000/- per month. Deducting 1/3rd for the personal expenses for the deceased the reminder comes to Rs.8000/- per month or Rs.96,000/- per year. The deceased was aged about 35 years and, therefore, the relevant multiplier would be 16 and the compensation works out to Rs.15,36,000/-. In addition thereto the widow is held entitled to Rs.50,000/- for loss of consortium and the claimants are also awarded Rs.14,000/- for funeral expenses. The total compensation thus comes to Rs.(15,36,000/- + 50,000/- + 14,000) = Rs.16,00,000/-. As held by me above, the responsibility of Malu Miah would be 30% towards the accident and therefore, 70% of Rs.16,00,000/- which comes to Rs.11,20,000/- is awarded in favour of the claimants. 11. In view of the above discussion, the award is enhanced from Rs.4,51,500/- to Rs.11,20,000/- i.e. by Rs.6,68,500/- The claimant shall also be entitled to interest on the enhanced sum of Rs.6,68,500/- @ 7.5% per annum from the date of filing of the claim petition till deposit of the amount. The insurance company i.e. the National Insurance Company Ltd. is directed to deposit the enhanced amount of compensation along with proportionate interest thereupon in the Registry of this Court within four months from today. Obviously, the insurance company shall be entitled to adjust the amount(s), if any, which it has already paid or deposited. 12. The appeal is disposed of in the aforesaid terms. No order as to costs. Send down the lower Court records forthwith.